dismissed L-1A Case: Management Consulting

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. A3042 
Washington, DC 20529 
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U. S. Citizenship 
and Immigration 
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File: SRC 03 21 1 52453 Office: TEXAS SERVICE CENTER Date: a4ms 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant .Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
\ 
Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC 03 21 1 52453 
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DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its chief executive officer 
as an L-1A nonimmigrant intracompany transferee pursuant to section lOl(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a limited liability company organized 
in the State of Georgia that is engaged in the provision of management consulting services. The petitioner 
claims that it is the subsidiary of located in India. The beneficiary was initially granted a 
one-year period of stay to open a new office in the United States and the petitioner now seeks to extend the 
beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. The director also noted that the 
petitioner did not submit sufficient evidence to establish that it had secured physical premises for an office, or 
that it was doing business as a consulting business. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motlon and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director's 
decision was based on an incorrect application of the law and Citizenship and Immigration Services (CIS) 
policy, as it placed undue emphasis on the size of the petitioning company. Counsel contends that the 
beneficiary performs primarily managerial or executive duties and is thus qualified for the benefit sought. 
Counsel also submits evidence to refute the director's conclusions that the petitioner had not established that 
it is doing business. In support of these assertions, counsel submits a brief and additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 3 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
SRC 03 21 1 52453 
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(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
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(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section lOl(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity'' as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
On the L Classification Supplement to Form 1-129, submitted with the initial petition, the petitioner indicated 
that the beneficiary would perform the following duties as chief executive officer: "TimelMaterial 
management; Administrative management; Recruitment; Marketing; Financial Activities, such as collection 
payments, expenses, accounting, auditing and taxation." In a letter appended to the initial petition, the 
petitioner described the following job duties: 
[The beneficiary] has been mana ing [the petitioning organization] over the past year, 
working with -. for such management and consulting services, and is 
securing new contracts with other clients. 
[The beneficiary's] skill and expertise is thus essential to [the petitioner], that seeks to profit 
from his expertise in management both broadly, and as applied to consulting on plastics 
issues faced by US companies. His personal experience and knowledge is crucial, as [the 
beneficiary's] experience is the primary capital of the US branch. He uses his knowledge in 
advising and consulting local businesses. 
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[The beneficiary] has been establishing contacts with clients as well as managing the day-to- 
day business of the entire business. As the executive manager he has been negotiating 
contracts with new clients. He directs and coordinates activities of future personnel in the 
office, prepares reports to clients, and offers concrete and practical assistance in his clients' 
managerial and business activities. 
The petitioner indicated on Form 1-129 that it employed two individuals at the time the petition was filed. 
On September 26, 2003, the director issued a request for additional evidence, which included, in part, a 
request for copies of the petitioner's last two Forms 941 and copies of the last three pay stubs of all 
employees. 
In response, the petitioner submitted its Forms 941, Employer's Federal Quarterly Tax Return for the first 
three quarters of 2003; pay stubs for the beneficiary for July, August and September 2003; and pay stubs for 
the petitioner's other employee for July and August 2003. 
On December 22, 2003, the director denied the petition determining that the beneficiary would not be 
employed in a qualifying managerial or executive capacity under the extended petition. The director 
specifically noted that the beneficiary would be the person performing the necessary tasks for the ongoing 
operation of the company, rather than primarily directing or managing those functions through the work of 
others. The director further noted that "there is no corporate structure isolating him from the day-to-day tasks 
of the consultant work." 
On appeal, counsel for the petitioner asserts that the beneficiary performs primarily managerial duties 
although he also provides services, and states that the director erred in emphasizing the small size of the 
petitioning company. Counsel cites several unpublished AAO decisions in support of his assertions that a 
small organization can support a managerial position as long as the beneficiary is engaged in primarily 
qualifying duties. Counsel also provides additional job duties for the beneficiary, including: control of 
financial matters, establishing goals and policies, signing checks and contracts, and "administering all other 
functions" of the business, and states that the beneficiary directs the organization, supervises the work of the 
other employee, has the authority to take personnel actions and is the only employee with discretion over day- 
to-day operations. Counsel concludes that the beneficiary's primary activity is negotiating deals, not 
providing services, and that hiring another employee has allowed the beneficiary more time to focus on the 
executive and managerial functions. 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
9 2142(1)(3)(ii) The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on 
partial sections of the two statutory definitions. A petitioner must establish that a beneficiary meets each of 
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the four criteria set forth in the statutory definition for executive and the statutory definition for manager if it 
is representing the beneficiary is both an executive and a manager. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that the 
beneficiary's duties include "establishing goals and policies," "timelmaterial management," and 
"administrative management." The petitioner did not, however, define the beneficiary's goals, policies, or 
clarify the specific duties entailed by "timelmaterial management" or "administrative management." The 
AAO accept a vague job description and speculate as to the related managerial or executive job duties. 
Reciting the beneficiary's vague job responsibilities br broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has failed to 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Specifics are clearly an important indication 
of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Id. at 1103. 
In addition, the petitioner describes the beneficiary as preparing reports for clients, "offer[ing] concrete and 
practical assistance in his clients' managerial and business activities," and "advising and consulting local 
businesses." Since the petitioner is a consulting company, and the beneficiary is clearly performing the 
consulting services, he is performing a task necessary to provide a service or product and these duties will not 
be considered managerial or executive in nature. An employee who primarily performs the tasks necessary to 
produce a product or to provide services is not considered to be employed in a managerial or executive 
capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). The petitioner 
also describes the beneficiary as performing a number of other non-managerial operational and administrative 
duties, such as the company's marketing, and all of its routine financial activities, including, collection of 
payments, expenses, accounting, auditing and taxation matters. 
The petitioner fails to document what proportion of the beneficiary's duties would be managerial functions 
and what proportion would be non-managerial. The petitioner lists the beneficiary's duties as managerial, but 
it fails to quantify the time the beneficiary spends on them. This failure of documentation is important 
because many of the beneficiary's duties, as mentioned above, do not fall directly under traditional 
managerial duties as defined in the statute. For this reason, the AAO cannot determine whether the 
beneficiary is primarily performing managerial or executive duties. See IKEA US, Inc. v. U.S. Dept. of Jzutice, 
48 F. Supp. 2d, 22, 24 (D.D.C. 1999). While counsel states on appeal that the beneficiary is primarily 
engaged in negotiating deals and business development, without documentary evidence to support the claim, 
the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 503, 506 (BIA 1980). Based on the record, the 
petitioner has a single contract to provide "advise [sic] on management, business relations, cornnlerce, 
bookkeeping and accounting" for a client that operates a dry cleaning business. No additional contracts were 
signed during the petitioner's first year of operations, which raises doubts regarding counsel's claim that the 
beneficiary is primarily engaged in business development activities. Overall, the job description provided by 
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the petitioner does not establish that the beneficiary will primarily perform in a managerial or executive 
capacity. 
On appeal, counsel asserts that the director erred by emphasizing the small size of the petitioning company in 
determining that the beneficiary would not be employed in a qualifying managerial or executive capacity. 
Counsel cites several unpublished AAO decisions in support of this assertion. Counsel has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in the cited cases. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. See Matter of Treasure Crafr of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Furthermore, while 8 C.F.R. fj 103.3(c) provides that AAO precedent decisions are binding on all CIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 5 1 lOl(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of developn~ent of 
the organization.. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. 9 214.2(1)(14)(ii)(D). At the time of filing, the petitioner employed the 
beneficiary as chief executive officer and a part-time employee whose job title and job duties have not been 
identified. Therefore, the petitioner did not submit evidence that it employed any subordinate staff members 
who would perform the actual day-to-day, non-managerial operations of the company, and, as noted above, 
the beneficiary is providing the consulting services and performing routine finance and accounting functions. 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
lOl(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1101(a)(44). The reasonable needs of the petitioner may justify a 
beneficiary who allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent, 
but those needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying 
duties. 
Finally, counsel suggests on appeal that the beneficiary qualifies as a "function manager" under current 
Citizenship and Immigration Services regulations and interpretations. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(ii). The term "essential function" is not defined by 
statute or regulation. If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must furnish a written job description that clearly describes the duties to be performed, i.e. identify 
the function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. 8 C.F.R. 8 214.2(1)(3)(ii). In addition, 
the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. An employee who primarily performs the 
tasks necessary to produce a product or to provide services is not considered to be employed in a managerial 
or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing 
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Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cornrn. 1988)). In this matter, the 
petitioner has not provided evidence that the beneficiary manages an essential function. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. The regulation at 8 C.F.R. $ 214.2(1)(3)(v)(C) allows the 
intended United States operation one year within the date of approval of the petition to support an executive 
or managerial position. In order to qualify for an extension of L-1 nonimmigrant classification under a 
petition involving a new office, the petitioner must demonstrate through evidence, such as a description of 
both the beneficiary's duties and the staff of the organization, that the beneficiary will be employed in a 
primarily managerial or executive capacity. There is no provision in CIS regulations that allows for an 
extension of this one-year period. If the business is not sufficiently operational after one year, the petitioner is 
ineligible by regulation for an extension. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The petitioner indicates that it plans to hire employees in the future. 
However, the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). In the instant matter, the 
petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial or 
executive position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily or 
managerial capacity, as required by 8 C.F.R. $ 214.2(1)(3). For this reason the appeal will be dismissed. 
The second issue in this proceeding is whether the petitioner has established that it has been doing business in 
the United States as required by 8 C.F.R. 5 214.2(1)(14)(ii)(B). In her decision, the director referred to two 
issues which raised doubts regarding the petitioner business operations: (1) the petitioner did not submit 
evidence that it had paid rent according to the terms of its submitted lease agreement; and (2) the petitioner's 
only client is its landlord, and this company appears to be the beneficiary's employer. 
On appeal, counsel states that the petitioner did not submit evidence of rent payments because the rent 
payment was not due until the end of 2003 according to the terms of the lease between the petitioner and its 
landlord. The petitioner submits evidence of the rent payment on appeal. 
The AAO notes, however, that the record contains two lease agreements for the same address. The lease 
agreement submitted with the initial petition was signed on July 20, 2003 and is for a term of two years from 
August 21, 2003 to August 20, 2005. Under the terms of this agreement, the petitioner is required to pay the 
landIord $600.00 on the first day of each month. Also submitted with the initial petition was the beneficiary's 
Internal Revenue Service (CRS) Form 1040, Individual Income Tax Return and Form 8829, Expenses for 
Business Use of Your Home, for 2002 According to the tax documentation, all profit reported by the 
beneficiary as the petitioner's sole owner was claimed to be derived from the business use of his home. 
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In the request for evidence dated September 26, 2003, the director specifically asked whether the petitioner 
had been doing business out of his home exclusively during the past year. The petitioner responded that it had 
always had a cornmercial lease for the property indicated in the above-mentioned lease. The petitioner 
attributed the Form 8829 to an accounting error, and also submitted a statement from its accountant asserting 
that the beneficiary did not operate from a home office. Finally, the petitioner submitted a different lease 
agreement with the same landlord and for the same location. The lease agreement submitted in response to the 
request for evidence and on appeal, signed on August 20, 2002, is for a period beginning on August 20,2002 
and terminating on August 20, 2006. Under the terms of this lease agreement, the petitioner is required to pay 
a lump sum payment of $10,200 on December 3 1,2003 and annual payments of $7,200 in subsequent years. 
The petitioner has provided no explanation regarding the lease agreement submitted with the initial petition. 
The petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and objective 
evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Simply asserting that the preparation of the 
Form 8829 was a clerical error does not qualify as independent and objective evidence. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure CraB of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Furthermore, evidence that the petitioner submits for the first time after CIS points out the deficiencies and 
inconsistencies in the petition will not be considered independent and objective evidence. Necessarily, 
independent and objective evidence would be evidence that is contemporaneous with the event to be proven 
and existent at the time of the director's notice. 
Based on the conflicting documentation submitted, the AAO cannot determine whether the petitioner had 
signed a commercial lease during the first year of business. The regulation at 8 C.F.R. § 214.2(1)(3)(v)(A) 
requires a petitioner that seeks to open a new office to submit evidence that it has acquired sufficient physical 
premises to commence doing business. In the present matter, either the petitioner did not comply with this 
requirement, misrepresented that they had complied, or the director committed gross error in approving the 
petition without evidence of the petitioner's physical premises. Regardless, the approval of the initial petition 
may be subject to revocation based on the evidence submitted with this petition. See 8 C.F.R. 
§ 214,2(1)(9){iii). 
With respect to the petitioner's close business relationship with its landlord, , counsel 
for the petitioner states that "the landlordltenant relationship and the consultant/client relationship between the 
two businesses is evidence only of the close personal ties that often result in the growth of new businesses" 
like the petitioner. While counsel is correct that there is "no authority for denying a petition merely on the 
ground that it rents office space from its prima client," the fact that the petitioner has only one client and 
derives its income solely from daises questions as to whether the petitioner has been doing 
business pursuant to the regulations at 8 C.F.R. 5 214.2(l)(ii)(H): 
Doing Business means the regular, systematic, and continuous provision of goods and/or 
services by a qualifying organization and does not include the mere presence of an agent or 
office of the qualifying organization in the United States and abroad. 
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At the time the petition was filed, the petitioner had a single contract to rovide consulting services to 
a Cleaning, which is evidently owned andlor operated by at an hourly fee of $50 
to $75. The petitioner received payments of $14,010 from in 2002, as evidenced by the 
submitted Form 1099-MISC, Miscellaneous Income. The petitioner has submitted no other evidence, such as 
copies of invoices or evidence of payments received for services rendered, to establish that it has been doing 
business for the entire first year of operations, and all of the financial statements submitted show only 
projected income. From, the minimal documentation of the petitioner's business operations, the AAO cannot 
conclude that the petitioner has been doing business for the previous year as required by 8 C.F.R. 
5 214.2(1)(14)(ii)(B). The AAO further cannot conclude that the petitioner has submitted sufficient evidence 
of the financial status of the U.S. entity as required by 8 C.F.R. 5 214,2(1)(14)(ii)(E). For these additional 
reasons the petition may not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.